Regime Changeafter the Breakup of the Japanese Empire

As of the Fall of 1945, there were regime changes in many areas of the defeated Japanese Empire. The Kurile Islands came under Russian administration, the Ryukyus came under US administration, and “Formosa & the Pescadores” came under Chinese administration. DokdoIsland was still under dispute, but it came under Korean administration in April 1953. Later, the entire Ryukyu Islands chain came under Japanese administration again as of May 1972.

The San Francisco Peace Treaty (SFPT) of April 28, 1952 is currently the highest ranking document of international law dealing with legal status of these areas. Nevertheless, in the SFPT“Formosa & the Pescadores”along withthe Kurile Islands were ceded by Japan without specifying any “receiving country.” This is a situation that confuses many researchers. Arguably, the island groups of Dokdo (in a border area between Japan and Korea) and the Senkakus (at the southwestern end of the Ryukyu island chain) are not specifically mentioned in the treaty. Hence, according to many scholars, the “specifications”(or “non-specifications”) in the peace treaty leave the legitimacy of the regime changes in many areas of the dismembered Japanese Empire open to serious doubt. Indeed, in the present era, scarcely a month goes by without discussion in the global news media regarding the ongoing international disputes involving competing claims to the “ownership” of these islands.

The authors have found that even a thorough reading of the Hague Conventions, Geneva Conventions, Commentaries of the ICRC, the content of US Army Field Manual FM 27-10, etc. are inadequate preparation to make a dissection of the complexities of regime change via the “sovereignty transfer” of territory (generally called “territorial cessions”) in a peace treaty.

Even decades after the coming into force of a peace treaty, it is often seen that there are still many arguments in the international community regardingwhat country is entitled to legitimately exercise sovereign rights over these areas. Moreover, there are often also wide varieties of opinion on whether some territorial cessions already meet the criteria for “statehood,”or what actions would be necessary for them to meet the criteria for “statehood” at some day in the future. Obviously, without the development of a clear and workable legal structure for appraising the many and various claims, it is impossible to evaluate the legitimacy of any regime change which “appears to have occurred.”

In order to solve this problem, the authors have looked at a variety of military occupations (from the late 1700’s to the latter half of the 20th century), many of which later became territorial cessions in a peace treaty. Based on this research, the authors have built a model of a supposed war between Malaysia and Indonesia which occurs in the modern era. The military occupation and final disposition of the hypothetical Indonesian island of Janipatrais then dissected. In order to explain and illustrate the basic nature of “military occupation” in general, and of “territorial cessions” in particular, a number of axioms arederived. The validity of these axioms will be shown via the Malaysian Indonesian War model as well as other historical and legal data. These axioms are all based on the law of occupation, as contained in the customary laws of warfare. (FT1)

After overviewing the developments in the hypothetical Malaysia Indonesia War, the knowledge gained and the axioms derived are then used to examine the situations of the “breakup” of the Japanese Empire after the events of August 1945. This examination covers the ensuing military occupation of Japan, her overseas territories various other neighboring areas, the post-war San Francisco Peace Treaty of 1952, and other relevant historical data. Most importantly, the authors offer a structured framework whereby a precise determination of which country should legitimately exercise sovereign rights over the Kurile Islands, the Senkakus (Diaoyutai), Dokdo (Takeshima) , and Formosa & the Pescadores (aka Taiwan) can be determined. In this way, the question of the legitimacy (or non-legitimacy) of the “regime change” in each of these disputed areas can be resolved.

PART 1

The Malaysian Indonesian War of 1992

[Major Events in the M.I. War and Scenarios 1 to 5] A preliminary description and general overview of our hypothetical war may be described as follows. In the area of water between Java, Sumatra, and Borneo, there is an island called Janipatra of approximately 50,000 sq. km. which of course is part of Indonesia. On Jan. 5, 1992, the Indonesian air force makes a surprise attack against Penang, Malaysia, and on Jan. 6, Malaysia declares war against Indonesia. During the course of the war, Indonesian troops also attack some southern areas of Thailand and Cambodia. A Malaysian general serves as Supreme Commander of the Malaysian, Thai, Cambodian, and Papua New Guineanforces. A number of military officers from other countries are hired as advisors.

All military attacks against installations and fortifications throughout the Indonesian archipelago (of course including Janipatra) were conducted by Malaysian military troops. Indonesia is of course a large geographic area, and due to manpower shortages, the surrender ceremonies for some areas of Indonesiawere delegated to coalition forces. In particular, the handling of Janipatra islandwas delegated to Cambodian military troops, and some islands in the northeastern sector of the Indonesian archipelago were delegated to Thai military troops.

The King of Indonesia announced his unconditional surrender on Sept. 15, 1992, and the formal surrender ceremonies were held on Oct. 2ndin a Malaysian warship anchored off the coast of Singapore. Later, the Cambodian military commanders accepted the surrender of Indonesian troops in Junipatra on Nov. 25th.

In the post war peace treaty of 1996 (Treaty of Vladivostok), the following specifications are notable. (1) The coalition forces and other parties to the treaty recognize (a) the full sovereignty of the Indonesian people over Indonesia and its territorial waters, (b) the independence of East Timor. (2) Indonesia cedes the northern one-fifth of Sumatra island, and Malaysiais designated as the “receiving country.” (3) Indonesiarenounces all right, title and claim to Janipatra island. However, no "receiving country" for Janipatra island isspecified. (4) According to the geographical coordinates given in the treaty, it is unclear whether the Talamel island group, total area 6 sq. km.,and located approx. 100 km. southeast of East Timor, is to be considered part of Indonesia or not.

In order to discuss the relationship between military occupation and the specifications of the peace treaty in more detail, we need to present a number of Axioms. (These axioms must be understood within the framework of the customary laws of warfare.)

[AXIOM 1] Military Occupation and Military Government

Military occupation is conducted under military government.

Explanatory Notes: Military government is the form of administration by which an occupying power exercises government authority over occupied territory.

The interlude under the jurisdiction of the military government of “the occupying power” is a transitional period. However, since the term "transitional" has many other uses in English, we can avoid confusion by referring to this as a period of "interim status." (See Axiom 2)

[AXIOM 2] Political Status

Military occupation is period of "interim (political) status." The occupied territory is said to be “in interim status under the law of occupation.”Since the territory has not reached a final (political) status, it is a sub-sovereign entity.

Explanatory Notes: The status of the territory can also be described as “undetermined,”or as an “independent customs area.”

For Janipatra island, in order to discuss the responsibilities of the troops conducting the military occupation, and the rights of the local populace, we need to first determine who “the occupying power” is. Unfortunately, neither the Hague nor Geneva Conventions define the terminology of “the occupying power.” However, some simple analysis can be undertaken as follows.

For occupied territory, HR 42requires the establishment of military authority that can be exercised. In Janipatra, the Cambodian military troops have accepted the surrender of Indonesian troops, raised the Cambodian flag, established a headquarters office, taken physical control of property, and are exercising actual and effective jurisdiction over local persons, businesses, organizations, etc. The question is: Can we conclude that Cambodia“the occupying power”?

The answer is No. This is explained by looking at the evolution of the concept of military occupation. We can provide a general summary by saying that in the pre-Napoleonic era, in most parts of the world, the "conqueror" merely annexed the territory, and was recognized as the "annexor".

In the post-Napoleonic world, these customary norms began to change, so international law said that the "conqueror" could only be regarded as “the occupying power". This was more formally codified in the Hague Conventions of 1907. Moreover, it is important to recognize that the military occupation of any area can be delegated to co-belligerents (i.e. "allies" or “coalition troops”). (See Axiom 3)

[AXIOM 3] The Principal Occupying Power, (specification 1)

The terminology of "the occupying power" as spoken of in the customary laws of warfare is most properly rendered as "the principal occupying power," or alternatively as "the (principal) occupying power." This is because the law of agency is always available.

Explanatory Notes: When the administrative authority for the military occupation of particular areas is delegated to other troops, a "principal -- agent" relationship is in effect. (FT2)

Principal occupying power may be abbreviated as p.o.p. (FT3)

(See Axiom 4)

[AXIOM 4] The Principal Occupying Power, (specification 2)

The conqueror is the principal occupying power.

Explanatory Notes: In regard to the geographic scope covered by a particular peace treaty, the p.o.p. can be assigned via specifications of the treaty, or it can be determined based on the historical data.

In this Malaysian Indonesian War scenario, Malaysia is the p.o.p.

The post-war peace treaty has two territorial cessions: (1) the northern one-fifth of Sumatra and (2) Janipatra. (FT4) Interestingly, for Janipatra there has been no specification of a “receiving country.” We may call this a “limbo cession.”

Next, we need to examine the criteria for determining the end of the military occupation of different areas of Indonesia. As stated in the peace treaty, the full sovereignty of Indonesia is recognized. Under international law, who has taken the principal role in making this recognition? In the event of any current or future dispute over the territorial boundaries of “Indonesia,” who has the authority to make a final decision? The answer to both questions is Malaysia, the p.o.p.

Hence, upon the coming into force of the post-war peace treaty on April 28, 1996, Indonesia’s sovereignty over its own territory, within the boundaries as defined in the peace treaty, is recognized. In practical terms, this means that a civil government for Indonesia is in place and functioning. Hence, military occupation in Indonesia proper has ended with the coming into force of the peace treaty. (FT5) (See Axiom 8)

[AXIOM 8] Peace Treaty, (specification 1)

The designation of a "receiving country" for a territorial cession in a peace treaty means that the Legislative Branch of the "receiving country" is authorized to pass legislation to establish civil government in the territory.

Explanatory Notes: (A) It should be recognized that at the point of cession, the territory is actually being ceded to the military government of the p.o.p. (B) Before the receiving country’s civil government begins operations, the territory remains under the jurisdiction of the p.o.p. and in “interim status.” (C) Without the appropriate specifications in a treaty, there is no authorization for any “country” to establish civil government in the territory.

However, what about the situations of the northern one-fifth of Sumatra island andthe entirety of Janipatra island? Has the military occupation of these two territorial cessions ceased? Has the military occupation of the undemarcated Talamel island group ceased as well?

The answer in each case is No. The fundamental “legal logic” for examining this type of problem must be obtained by looking at the establishment of civil government operations in the Spanish American War cessions of Puerto Rico and Cuba. Both of these territories originally belonged to Spain. Dates for the surrender of Spanish troops in these areas are usually given as July 17, 1898, and Aug. 12, 1898, respectively, thus providing a convenient date to mark the beginning of the belligerent occupation. In the Treaty of Paris (April 11, 1899), Spain ceded Puerto Rico to the United States. Spain also ceded Cubabut without specifying a “receiving country.”

Civil government in Puerto Rico, based on the provisions of a law (FT6) passed by the US Congress, began operations on May 1, 1900, thus supplanting United States Military Government (USMG) in the territory.

Civil government operations in Cuba began on May 20, 1902, under the name of the Republic of Cuba. These civil government operations supplanted USMG in Cuba. (FT7)

The “Isle of Pines” (with an area 3056 sq. km., located 100 km to the southwest of mainland Cuba, across the Gulf of Batabano) was not mentioned in the treaty or US Congressional resolutions which defined Cuba's boundaries. This was a source of dispute until finally resolved in 1925. (See Axiom 9)

[AXIOM 9] Peace Treaty, (specification 2)

In regard to a territorial cession or undemarcated territory in a peace treaty, the military government of the principal occupying power does not end with the coming into force of the treaty, but continues until supplanted by a recognized “civil government” for the area.

Explanatory Notes: This so-called “recognized ‘civil government’” should not be confused with (i) a “civil affairs administration” of the military government of the p.o.p., (ii) a “provisional” or “transitional” civil government which is established by the local populace and operates under the military government of the p.o.p.

After the Mexican American War, the Treaty of Guadalupe Hildalgocame into force on July 4, 1848. The issue of whether the military government of the (principal) occupying power (i.e. the United States) in Californiahad actually ended on that date was later addressed by the US Supreme Court. In Cross v. Harrison (1853) the Justices concluded that it had not. This conclusion was reaffirmed in later cases as well. (FT8)

In summary, in regard to the northern one-fifth of Sumatra, after the peace treaty comes into effect, the Parliament of Malaysia must pass a law to provide for a civil government for this area, which we can call “the relevant civil government legislation.” International practice dictates that the local populace be given a minimum of one year to decide whether to retain their original nationality, to accept the nationality of the new government, and whether or not to emigrate from the area. Military occupation of this territorial cession under the Federation of Malaysia Military Government (FMMG) continues until supplanted by civil government operations, which must be based on “the relevant civil government legislation.”

For the territorial cession of Janipatra, no “receiving country” has been designated. In other words, no country is authorized to pass “the relevant civil government legislation” for the territory. Hence, military occupation of this territorial cession under FMMG will continue until legally supplanted at some future date. Military occupation is not “annexation,” moreover the fact that the administrative authority for the military occupation of Janipatra has been delegated to Cambodian military troops should always be kept in mind. Under such an arrangement, Cambodia is serving the role of a subordinate occupying power.

Unfortunately, even after the coming into force of the peace treaty, it is often seen that the Talamel island group, or different parts thereof, now often rotates under the control of military squadrons from Indonesia, East Timor, and Papua New Guinea. Under such circumstances, the military troops of these countries can only be regarded as serving in the role of subordinate occupying powers. (At some appropriate future time, this territorial dispute must be resolved by negotiations between the principal occupying power and representatives of these countries.)

With this background information, let us examine multiple scenarios for the determination of Janipatra’s final political status.

The Political Future for JanipatraIsland

Indonesia ceded Janipatra in the peace treaty without designating a “receiving country.” Nevertheless, the general consensus of the world community does not support independence for Janipatra. The King of Malaysia has also stated his current opposition to any moves toward independence. However, even without independence, the status of a self-governing territory under the administrative authority of FMMG would be one possible option. Indeed, this would be one form of “self determination” for the territory.

-- INSERT CHART #1 --

Clearly, now that the peace treaty has come into effect, in order to be a self-governing territory under FMMG, Janipatra needs to form its own government.

Scenario 1 --

Tribal Governments: In one possibility, after the Malaysian Indonesian War, Janipatra has descended into a rather chaotic situation, and different areas of the island are now effectively organized into loose forms of tribal governments, which have little or no contact between one another. There appears to be no "government of Janipatra" which is coalescing.

Scenario 2 --

Dual Governments: Another possibility is that after the Malaysian Indonesian War, two different political groups have emerged in Junipatra and are now engaged in organizational activities for establishing a new government, including the writing of a Constitution, the recruiting of members for a new congress, the selection of judges, the designing of a territorial flag, the choice of a Governor-President, etc.

Scenario 3 --

Standard Government Formation: A more straightforward set of circumstances would be to imagine that after the Malaysian Indonesian War, a group of scholars and politicians have come together, along with the support of local NGOs, to petition the Malaysian Parliamentto make a determination of their “civil rights and political status.” Next, they would petition for permission to call a constitutional convention to draft a constitution for Janipatra territory.

Scenario 4 --

Subordinate Occupying Power Influence: Another possibility is to say that the Thai authorities have repeatedly stressed to the king of Malaysiathat the situation in Janipatra is unstable, and that the Cambodian military troops are incapable of administering the island in an effective manner. They have urged that Thailandbe allowed to annex the island, in order to promote long-term peace throughout the South East Asian region.